The Emoluments Clause, Impeachment, and Trump: An Explainer

Many of the Wikipedia-driven insta-experts on the Electoral College are now transforming into insta-experts on the Emoluments Clause, claiming the Clause can be used to impeach President Trump. But it is not that simple. What is the Clause, and in practical terms, how might it affect Trump?

Save Us Please, Emoluments Clause!

Deep inside Article I of the Constitution are a handful of lines called the Emoluments Clause, intended to bar office holders from accepting gifts (the full definition of emolument includes a salary, fee or profit from employment or office) from foreign sovereigns, including in the language of the 18th century, kings and princes. The Founders’ intent was to prevent foreign influence buying.

Insta-experts seem to be circle-logicing themselves into believing Trump will be in violation of the Emoluments Clause literally as he takes the oath of office, and thus impeachment proceedings can follow, all because of his global business interests.

But unlike most everything else in the Constitution, issues connected to the Clause have never gone before the Supreme Court, there is very little case law, and very little legal study. It has simply not come up in any significant way. Journalists have discovered the Clause, however, and now are promoting it as a way to defeat President Trump.

The problem is that much of what is being written appears to come from Clinton supporters in denial. The election failed, the recounts failed, the move to sway faithless Electors failed, the sludge of Russian allegations failed, Meryl Streep failed, and Beyonce not pole dancing at the inauguration failed. All that stands between democracy and the abyss is the Emoluments Clause.

The Clause is aimed at governments, those kings and princes, seeking to influence the United States. It has nothing to say about 21st century life, such as Trump’s companies doing business with entities controlled in whole or part by foreign governments (state-owned businesses, such as the Bank of China, as is common in many parts of the world.)

The Clause is also untested in regards to complex corporate ownership. It is common in the media to state matter-of-factly “Donald Trump owns a hotel in Dubai.” Yet most of Trump’s business, like most corporate business in general, is done through a web of companies that are legal entities of their own. Some involve stockholders, some in which Trump holds a minority position. Similar questions would likely have been asked about foreign government donations to the Clinton Foundation had Hillary been elected president. None of this existed when the Clause was written, and all of this requires a 21st century judicial interpretation.

Emoluments are more complex than simply doing business overseas. The Clause may allow for fair market price transactions, for example. So, if a piece of real estate is legitimately (and yes, we’ll argue over that word) valued at $100,000, it is not a bribe or a representation of influence to sell it for $100k. It would be more questionable to accept $150k. Some have claimed if a foreign diplomat stays at a Trump hotel, the standard room price paid would violate the Clause. That’s a question of legal exchange; if Trump accepts money from Iran to remove sanctions, that’s a bribe. If a Trump hotel collects money for a night in the bridal suite, that’s a simple exchange of goods and services. Does the Emoluments Clause apply?

Some legal scholars argue the Emoluments Clause doesn’t apply to the president at all. A different clause of the Constitution makes bribery an impeachable offense. That clause specifically mentions the president by title, while the Emoluments Clause does not. In addition, other parts of the Constitution that specifically address the president typically include a separate delineation for “officials,” the wording used in the Emoluments Clause.

That all suggests emoluments may exclude the president. However, precedent suggests the Clause does apply. George Washington was allowed to accept a foreign gift, Andrew Jackson was not, and Martin Van Buren had to agree to a 50-50 split with the State Department over gifts from the Imam of Muscat. And in 2009 the Office of Legal Counsel said President Obama could accept the Nobel Peace Prize money without violating the Clause. But all four men asked for an OK ahead of time. There was no actual challenge, and none of the cases involved doing business.

Another issue is standing, who can sue over any of this to get it into the courts for a ruling. One legal professor feels no one seems to have such standing, and so states “if there are concerns about how President Trump handles his various investments, the only remedies will be political.” Meaning vote him out of office in the next election if you don’t like what he’s doing.

There are also those who skip most of the legal arguments, and focus on the so-called larger picture; clearly the Founders did not want the president beholden to foreigners. So never mind the parsing of words, the Emoluments Clause was written precisely to stop a person like Trump.

In terms of practical matters, the less Trump makes public about his business dealings, the less chance anyone has of looking into any of this. Congress can’t even think about impeachment unless there is a “high crime or misdemeanor” involved and a Trump business deal per se is far from definitive evidence of that. Impeachment involves a lot of people in Congress agreeing on moving forward, and Congress for at least the next two years is controlled by the Republicans.

And should anyone find a way to pursue it, it would be easy for Trump’s side to drive the issue through the courts for some time, and, because it ultimately involves interpretation of the Constitution, to the Supreme Court.

Bottom Line

There are mostly questions and very few answers about the Emoluments Clause. There are also legitimate concerns over conflicts of interest during the Trump administration; no president in history has come into office with as vast and complex financial holdings. Modern presidents have bypassed all of this by using blind trusts, something Trump has said he will not do. This is clearly uncharted legal and political territory.

That said, it appears use of the Emoluments Clause to impeach Trump is another Clinton martyrdom political fantasy. Any clarification will involve extensive travel through the court system, and given the initial question of who even has standing to pursue that, nothing can happen quickly, if at all.

(Peter Van Buren, a 24 year State Department veteran, is the author of “We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People.” His next book is “Hooper’s War: A Novel of WWII Japan.” @WeMeantWell)

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RICH BAUER said...

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“A different clause of the Constitution makes bribery an impeachable offense. That clause specifically mentions the president by title, while the Emoluments Clause does not. In addition, other parts of the Constitution that specifically address the president typically include a separate delineation for “officials,”

Yes BUT Virginia there is a bribery get out of jail clause for officials—

Given the Supreme Court ruling in the ex Virginia governor McDonnell case, paraphrasing here, “only if an official is so stupid as to be caught on video accepting the money at the same time he is quidding the pro, then maybe he is guilty.”

NEWSFLASH: Donald Trump has added CANADA to the list of countries temporarily banned from entering the US, citing the terrorist attack by one of its citizens yesterday. Also, Trump has added the US-Canada border on his Great Wall project list.

If it comes down to protecting the country or his bank account, Trump is predictable:

No matter what the liar in chief says, he is still the one cashing the checks even if his sons are managing the day-to-day operations. That means that there are plenty of ways for people, organizations, companies and foreign governments to line his pockets.

Which is why a lawsuit was filed Monday accusing Trump of being in violation of the emoluments clause. The plaintiff is Citizens for Responsibility and Ethics in Washington, a liberal group, and they’re being aided by an all-star team of law professors and government ethics experts:

“The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses; loans for his office buildings from certain banks controlled by foreign governments; and leases with tenants like the Abu Dhabi tourism office, a government enterprise. ”

It’s hard to know at this point whether they’ll prevail. But unless it gets thrown out on an issue like whether CREW has standing to sue (a possibility), just the fact that the suit goes forward could be enormously significant. Here’s why:

“[Ethics expert Norman] Eisen said the legal team intended to use the lawsuit to try to get a copy of Mr. Trump’s federal tax returns, which are needed to properly assess what income or other payments or loans Mr. Trump has received from foreign governments.”

Follow the money: Bookmaker Ladbrokes has cut the odds on Donald Trump leaving office early amid mounting controversy about how he will manage his business interests after becoming America’s 45th President.

Ladbrokes opened the market at 3-1, cutting it to 5-2, and again to 9-4 in the wake of a flurry of bets on the back of a growing consensus among law professors that the controversial Republican is heading for trouble.

George Bush’s former ethics lawyer Richard Painter, now a University of Minnesota law professor, told Think Progress that the President-elect could have been in breach of the Emoluments Clause that prohibits presidents from buying influence with federal officials or receiving special treatment over an event held at his Washington DC Hotel were he in office. He was backed by Laurence Tribe, professor of law at Harvard University. The hotel was used to entertain and give a sales pitch to foreign diplomats.

Rumor has it a big bet was placed from Trump Tower using a Slovenia bank account.

SAN FRANCISCO (AP) — A man who President Donald Trump has promoted as an authority on voter fraud was registered to vote in multiple states during the 2016 presidential election, the Associated Press has learned.

Gregg Phillips, whose unsubstantiated claim that the election was marred by 3 million illegal votes was tweeted by the president, was listed on the rolls in Alabama, Texas and Mississippi, according to voting records and election officials in those states. He voted only in Alabama in November, records show.

In a post earlier this month, Phillips described “an amazing effort” by volunteers tied to True the Vote, an organization whose board he sits on, who he said found “thousands of duplicate records and registrations of dead people.”

The voter fraud specialist cited by Donald Trump as an authority owes the US government more than $100,000 in unpaid taxes, was once accused of lying about his qualifications, and has faced several allegations of ethical impropriety.

Gregg Phillips’s unfounded claim that three million people vote illegally in the US was championed in a tweet by Trump on Friday morning, as the new administration prepares to launch what he says will be a major inquiry into the integrity of American elections.

Phillips, 56, became popular among Trump supporters during the 2016 presidential campaign for his strident statements on Twitter and his development of an “election fraud reporting app” that allows people to use their cellphones to report alleged wrongdoing.

Trump should embrace the public’s right to know about his taxes. He is a big fan of extreme vetting.

The bonfire of Trump’s inanities: If these idiots had asked intelligent people to vet the policy proposal, individuals would not be denied entry and deported simply for being legal residents instead of citizens. Sen. Rob Portman of Ohio, a member of Trump’s supposed party, wryly observed: “You have an extreme vetting proposal that didn’t get the vetting it should have had.”

” Americans can fight abuses of power and disastrous policies directly—in courts, in congressional offices, in the press. But we can all can dedicate themselves to restoring the qualities upon which this republic, like all republics depends: on reverence for the truth; on a sober patriotism grounded in duty, moderation, respect for law, commitment to tradition, knowledge of our history, and open-mindedness. These are all the opposites of the qualities exhibited by this president and his advisers. Trump, in one spectacular week, has already shown himself one of the worst of our presidents, who has no regard for the truth (indeed a contempt for it), whose patriotism is a belligerent nationalism, whose prior public service lay in avoiding both the draft and taxes, who does not know the Constitution, does not read and therefore does not understand our history, and who, at his moment of greatest success, obsesses about approval ratings, how many people listened to him on the Mall, and enemies.” — Elliot Cohen

In response to the 1000 + signatures on the State dissent channel memo protesting the visa and immigration ban against Muslims, Trump has created the State Department Loyalty Oath. Any State employee who refuses to sign it will have their cafeteria privileges terminated and will be housed in the garage ghetto. In addition, such employees will be required to wear a yellow star and have to use pay phones installed in the garage to contact their posts and pay Western Union for their telegrams. Foreign Service Transfers will be responsible for airfare and moving expenses. Payment will be made to Trump Air and Freight.